Monday, June 22, 2015

Free ULI housing webinar - June 23 2 PM ET

For the housers out there...


Urban Land Institute
On Tuesday, June 23, at 2 p.m. ET, please join the Urban Land Institute, the John D. and Catherine T. MacArthur Foundation, and Hart Research for an hour-long discussion of America's housing needs. 
This interactive video broadcast will examine the results of three recent housing surveys, and panelists will answer your questions about Americans' attitudes toward housing.
Among other topics, the panelists will reveal: 
  • Americans' desires when it comes to housing.
  • How many individuals and families are making serious tradeoffs in order to afford housing.
  • Whether generation Y is really that different from its predecessors.
  • And—in answer to one of the biggest questions for the housing community today—the messages that can boost public support for affordable housing.

Hosting this event are Ianna Kachoris, program officer at the MacArthur Foundation; Maya Brennan, vice president of housing at the ULI Terwilliger Center for Housing; and Corrie Hunt vice president at Hart Research.

June 22, 2015 | Permalink | Comments (0)

Friday, June 19, 2015

Oh my blog, how I have missed thee

All of us here at Land Use Profs owe a big debt of gratitude to Stephen Miller these days. He has been keeping the blog going and posting fascinating discussions and useful information. I am finally returning from my 6 month blogging hiatus and plan to use the next few days to tell you about what I had been up to during that time. Self-indulgent I know, but hey it is a blog after all. There have also been some interesting articles coming out in peer review journals that I want to highlight and some random thoughts about field research for land use issues. More to come!

June 19, 2015 | Permalink | Comments (1)

Several positions at the Ocean Conservancy

From Becca Robbins Gisclair, an old friend, comes word of several positions at the Ocean Conservancy.  Pass along to anyone who might be interested:

We’re hiring for a couple of Arctic team members, an Arctic Program Specialist and a Circumpolar Conservation Union Coordinator .  Both are mid-level positions, 3-5 years of experience working on conservation or environmental policy. The Arctic Program Specialist position is based in Anchorage or Portland and the CCU position is based in Portland or DC.

We are also hiring someone to work with Janis Searles, our president as Special Assistant to the President . It’s a part admin/part legal position which would be great for someone coming out of law school and wanting to get into the conservation field.

June 19, 2015 | Permalink | Comments (0)

Thursday, June 18, 2015

Bloomberg Radio interview on Reed v. Town of Gilbert

I was a guest on Bloomberg Radio's Bloomberg Law, along with Prof. Mark Graber, University of Maryland Francis King Carey School of Law, discussing the U.S. Supreme Court's landmark sign regulation case, Reed v. Town of Gilbert, which was issued today.  The interview is available here.


June 18, 2015 | Permalink | Comments (0)

Pope Francis' Laudato Si on Land Use and the Ecology of Daily Life

Pope Francis released his much anticipated encyclical on the environment and climate change this morning, which is available here.  The encyclical has some great passages on land use, in particular, a section entitled "The Ecology of Daily Life," which I am copying below.  Things really get going around Paragraph 149, but I am copying the entirety of this section of the encyclical below.

III.  The Ecology of Daily Life

147. Authentic development includes efforts to bring about an integral improvement in the quality of human life, and this entails considering the setting in which people live their lives. These settings influence the way we think, feel and act.  In our rooms, our homes, our workplaces and neighbourhoods, we use our environment as a way of expressing our identity. We make every effort to adapt to our environment, but when it is disorderly, chaotic or saturated with noise and ugliness, such overstimulation makes it difficult to find ourselves integrated and happy.

148. An admirable creativity and generosity is shown by persons and groups who respond to environmental limitations by alleviating the adverse effects of their surroundings and learning to live their lives amid disorder and uncertainty. For example, in some places, where the façades of buildings are derelict, people show great care for the interior of their homes, or find contentment in the kindness and friendliness of others. A wholesome social life can light up a seemingly undesirable environment. At times a commendable human ecology is practised by the poor despite numerous hardships. The feeling of asphyxiation brought on by densely populated residential areas is countered if close and warm relationships develop, if communities are created, if the limitations of the environment are compensated for in the interior of each person who feels held within a network of solidarity and belonging. In this way, any place can turn from being a hell on earth into the setting for a dignified life.

149. The extreme poverty experienced in areas lacking harmony, open spaces or potential for integration, can lead to incidents of brutality and to exploitation by criminal organizations. In the unstable neighbourhoods of mega-cities, the daily experience of overcrowding and social anonymity can create a sense of uprootedness which spawns antisocial behaviour and violence. Nonetheless, I wish to insist that love always proves more powerful. Many people in these conditions are able to weave bonds of belonging and togetherness which convert overcrowding into an experience of community in which the walls of the ego are torn down and the barriers of selfishness overcome. This experience of a communitarian salvation often generates creative ideas for the improvement of a building or a neighbourhood.

150. Given the interrelationship between living space and human behaviour, those who design buildings, neighbourhoods, public spaces and cities, ought to draw on the various disciplines which help us to understand people’s thought processes, symbolic language and ways of acting.  It is not enough to seek the beauty of design. More precious still is the service we offer to another kind of beauty: people’s quality of life, their adaptation to the environment, encounter and mutual assistance. Here too, we see how important it is that urban planning always take into consideration the views of those who will live in these areas.

151. There is also a need to protect those common areas, visual landmarks and urban landscapes which increase our sense of belonging, of rootedness, of “feeling at home” within a city which includes us and brings us together. Some authors have emphasized the values frequently found, for example, in the villas, chabolas or favelas of Latin America.  It is important that the different parts of a city be well integrated and that those who live there have a sense of the whole, rather than being confined to one neighbourhood and failing to see the larger city as space which they share with others.  Interventions which affect the urban or rural landscape should take into account how various elements combine to form a whole which is perceived by its inhabitants as a coherent and meaningful framework for their lives. Others will then no longer be seen as strangers, but as part of a “we” which all of us are working to create. For this same reason, in both urban and rural settings, it is helpful to set aside some places which can be preserved and protected from constant changes brought by human intervention.

152. Lack of housing is a grave problem in many parts of the world, both in rural areas and in large cities, since state budgets usually cover only a small portion of the demand. Not only the poor, but many other members of society as well, find it difficult to own a home. Having a home has much to do with a sense of personal dignity and the growth of families. This is a major issue for human ecology. In some places, where makeshift shanty towns have sprung up, this will mean developing those neighbourhoods rather than razing or displacing them. When the poor live in unsanitary slums or in dangerous tenements, “in cases where it is necessary to relocate them, in order not to heap suffering upon suffering, adequate information needs to be given beforehand, with choices of decent housing offered, and the people directly involved must be part of the process”. At the same time, creativity should be shown in integrating rundown neighbourhoods into a welcoming city: “How beautiful those cities which overcome paralyzing mistrust, integrate those who are different and make this very integration a new factor of development! How attractive are those cities which, even in their architectural design, are full of spaces which connect, relate and favour the recognition of others!”

153. The quality of life in cities has much to do with systems of transport, which are often a source of much suffering for those who use them. Many cars, used by one or more people, circulate in cities, causing traffic congestion, raising the level of pollution, and consuming enormous quantities of non-renewable energy.  This makes it necessary to build more roads and parking areas which spoil the urban landscape.  Many specialists agree on the need to give priority to public transportation. Yet some measures needed will not prove easily acceptable to society unless substantial improvements are made in the systems themselves, which in many cities force people to put up with undignified conditions due to crowding, inconvenience, infrequent service and lack of safety.

154. Respect for our dignity as human beings often jars with the chaotic realities that people have to endure in city life. Yet this should not make us overlook the abandonment and neglect also experienced by some rural populations which lack access to essential services and where some workers are reduced to conditions of servitude, without rights or even the hope of a more dignified life.

June 18, 2015 | Permalink | Comments (0)

Wednesday, June 17, 2015

Takings Conference 2015

The 18th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations

Friday, September 25, 2015
The University of Maryland Francis King Carey School of Law
Baltimore, Maryland

Register Online | Download Brochure


This conference explores the takings issue as it relates to land use, environmental rules and other forms of economic regulation. In addition to offering a basic education in modern takings law, the conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues. Some of the topics to be discussed include the practical implications of the U.S. Supreme Court's recent takings decisions and pending takings issues before the Maryland Court of Appeals. The conference will also address the significance of the Supreme Court decision in Kelo v. City of New London on the 10th anniversary of that controversial case. Other issues to be discussed include potential takings issues arising from government efforts to deal with flooding and other disasters, local government access to insurance against takings claims, and novel takings claims based on the theory that property owners have an entitlement to regulatory protections.

CLE accreditation will be requested for 7.75 CLE credits (based on a 60-minute hour), and 9.3 CLE credits (based on a 50-minute hour).


  • Where is the U.S. Supreme Court headed on takings?
  • How should we celebrate the tenth birthday of the Kelo decision?
  • Can government failure to regulate give rise to takings claims?
  • Do personal and real property have the same level of protection under the Takings Clause?
  • Can local governments obtain insurance against takings claims?
  • How will the courts resolve the AIG and Fannie Mae bailout takings cases?
  • Can the bankruptcy process be redesigned to better protect homeowners?


7:30 to 9:30
Registration and Continental Breakfast

8:00 to 9:00
Introductory Program on Takings and Related Constitutional Doctrines
Robert Meltz, Congressional Research Service
Daniel Siegel, California Attorney General's Office

9:00 to 9:15
Welcome and Introductions

9:15 to 10:15
The Nature of Property in Takings Cases
Lynda L. Butler, William & Mary Law School
Steven R. Johnson, Maryland Department of the Environment
Michael Pappas, University of Maryland Francis King Carey School of Law

10:15 to 10:30

10:30 to 11:45
Reorganization Takings
Nestor M. Davidson, Fordham Law School
Kenneth M. Dintzer, U.S. Department of Justice
Jerry Stouck, Greenberg Traurig LLP
Jennifer Taub, Vermont Law School

11:45 to 12:30
Takings and Insurance
David Dana, Northwestern University School of Law
Christopher Serkin, Vanderbilt Law School

12:30 to 1:00

1:00 to 1:30
Keynote Address
Robert Percival, University of Maryland Francis King Carey School of Law
Ways Not to Think About Regulatory Takings: Professor Tribe and Why Takings Issues Will Outlive Plastic Trees

1:30 to 2:30
Disasters and Takings
Mark Davis, Tulane University School of Law
James Gette, U.S. Department of Justice
Justin Pidot, University of Denver Sturm College of Law

2:30 to 3:30
Kelo Ten Years Out
Alexandra Klass, University of Minnesota Law School
Ilya Somin, George Mason University School of Law
Elva E. Tillman, Baltimore Solicitor's Office

3:30 to 3:45

3:45 to 5:15
Whither the Supreme Court on Takings
J. Peter Byrne, Georgetown University Law Center
John D. Echeverria, Vermont Law School
Edwin S. Kneedler, U.S. Department of Justice
Carol Rose, Yale and Arizona Law Schools
Daniel P. Selmi, Loyola Law School

5:15 to 6:30


June 17, 2015 | Permalink | Comments (0)

Monday, June 15, 2015

In major decision, California Supreme Court upholds inclusionary housing ordinance as valid exercise of police power and not an exaction

Today, the California Supreme Court upheld an inclusionary housing ordinance adopted by the City of San Jose in California Building Industry Association v. City of San Jose.  In upholding the inclusionary housing ordinance, the Supreme Court concluded that the adoption of the ordinance was a valid exercise of the City's police power and not an exaction subject to the constitutionally-based reasonable relationship standard.  Lots of Nollan/Dolan / Koontz for you exactions-case lovers.  See Slip Op. 25 et seq.  After laying out the Nollan / Dolan / Koontz line of reasoning, the Court refused to apply it to the inclusionary housing ordinace, instead noting:

In the present case, contrary to CBIA‘s contention, the San Jose inclusionary housing ordinance does not violate the unconstitutional conditions doctrine [of Nollan / Dolan / Koontz] because there is no exaction — the ordinance does not require a developer to give up a property interest for which the government would have been required to pay just compensation under the takings clause outside of the permit process. As summarized above, the principal requirement that the challenged ordinance imposes upon a developer is that the developer sell 15 percent of its on-site for-sale units at an affordable housing price. This condition does not require the developer to dedicate any portion of its property to the public or to pay any money to the public. Instead, like many other land use regulations, this condition simply places a restriction on the way the developer may use its property by limiting the price for which the developer may offer some of its units for sale. (See, e.g., Yee v. Escondido (1992) 503 U.S. 519, 532 (Yee) [describing mobilehome park rent control ordinance as ―a regulation of [the mobilehome park owners‘] use of their property‖].) Contrary to CBIA‘s contention, such a requirement does not constitute an exaction for purposes of the Nollan/Dolan line of decisions and does not trigger application of the unconstitutional conditions doctrine.

Rather than being an exaction, the ordinance falls within what we have already described as municipalities‘ general broad discretion to regulate the use of real property to serve the legitimate interests of the general public and the community at large. For example, municipalities may designate certain areas of a city where only residential units may be built and other areas where only commercial projects are permitted. (See, e.g., Euclid, supra, 272 U.S. 365; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460.) If a municipality finds that it is in the public interest, it may specify where certain types of retail establishments may be operated and other areas where they may not. (See, e.g., Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 296-298 & fn. 10.) If a municipality concludes that the city already has a sufficient number of a specific type of business in a particular neighborhood — for example, adult entertainment businesses — it may prohibit other property owners from using their property in that area for such businesses. (See, e.g., Young v. American Mini Theatres (1976) 427 U.S. 50; Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41.) Similarly, if a municipality determines that a particular neighborhood or the community in general is in special need of a specific type of residential development or business establishment — such as a multiunit residential project or a retail shopping center — it may adopt land use regulations to serve such a need. (See, e.g., Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467, 477-478.) In addition, of course, a municipality may impose land use limitations on the height of buildings, set-back requirements, density limits (lot size and number of units per lot), bedroom requirements and a variety of other use restrictions. (See, e.g., Griffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 265-266.)

Slip Op. at 31-32.  The decision is a huge win for California cities.

June 15, 2015 | Permalink | Comments (0)

Kochan proposes dynamic framework for understanding property regulation and land use control

Donald J. Kochan (Chapman) has just published A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective in the Michigan Journal of Environmental & Administrative Law.  Here is the abstract:

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.

Kochan has also provided the following helpful graphic from his article: 



Kochan Dynamic Circle Image_ForInternet

June 15, 2015 | Permalink | Comments (0)

Friday, June 12, 2015

Please take a 3 question survey to make Land Use Prof Blog better

I became a co-editor of Land Use Prof Blog three years ago.  At that time, we received about 50-150 page views a day; these days, we typically receive anywhere from 400-1,000 page views daily.  In the last year, we have received over 125,000 page views.  To help make the blog better, it would be really helpful to understand who our new readers are and what folks want to see from the blog.  If you could answer the three questions below, we'd greatly appreciate it!  We welcome general comments in the third, open-ended text box below.  

We will keep this survey up for a month or so and will share results of the survey later this summer presuming we receive enough responses to prove meaningful.



June 12, 2015 | Permalink | Comments (0)

San Francisco makes sugary drinks a land use

The San Francisco Board of Supervisors has voted to require a warning on any advertisement for sugary drinks, which must cover 20% of the advertisement and read as follows:  "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco."  

That much has been covered in the media.  What has not been covered, and which would be of interest to this community, is that the advertisement warning also affects billboards and other "general advertising signs," which is San Francisco-speak for off-site signs.  For those with an interest in the intersection of Coke and land use, a review of the ordinance, which is available here, would prove fascinating.  The ordinance appears to still need the Mayor's signature before it becomes law.

My personal warning:  the particularities of how the warning requirement is written with regard to general advertising signs has much to do with the history of San Francisco sign legislation.  I am not going to go through all of that here; if anyone has a need to understand it better, though, feel free to email me and I'll walk you through it (I used to practice land use law in San Francisco).  Further, in most cities, such legislation could be written in a less convoluted fashion for those seeking to use this legislation as a model for regulating billboards.

June 12, 2015 | Permalink | Comments (0)

Wednesday, June 10, 2015

U Idaho's Boise campus gives new lease to a historic building

Today I got a walk through of the U of Idaho College of Law's new building here in Boise, which renovates the historic WPA-era Ada County Courthouse.  It's a great piece of historic preservation and will place the law school's Boise campus between the State Capitol, the State Supreme Court, and the Idaho State Bar building.  It will truly be a great new home for the College's Boise campus.  We move into the new building this summer.  

Incidentally, the building will also be a model of sustainability as it is tied to the city's downtown geothermal heating district, which is the largest in the country.

Below are several pictures of the work-in-progress.







June 10, 2015 | Permalink | Comments (0)

EPA releases new environmental justice mapping tool

EPA has just released a new environmental justice mapping tool.  I gave it a test drive and found it to be easy to use and potentially quite useful.  Here is a screenshot from the program of the PM2.5 exposure near my old residence in San Francisco:


More from the EPA press release:

EPA Releases EJSCREEN, An Environmental Justice Screening and Mapping Tool

Washington — Today, the U.S.  Environmental Protection Agency (EPA) released EJSCREEN, an environmental justice screening and mapping tool that uses high resolution maps combined with demographic and environmental data to identify places with potentially elevated environmental burdens and vulnerable populations. EJSCREEN’s simple to understand color-coded maps, bar charts, and reports enable users to better understand areas in need of increased environmental protection, health care access, housing, infrastructure improvement, community revitalization, and climate resilience.

 “EJSCREEN provides essential information to anyone seeking greater visibility and awareness about the impacts of pollution in American communities,” said EPA Administrator Gina McCarthy. “EJSCREEN has been a valuable resource for EPA to advance our commitment to protect Americans most vulnerable to pollution. I’m excited to share this tool with the public to broaden its impact, build transparency, and foster collaboration with partners working to achieve environmental justice.

“State environmental agencies appreciate EPA’s collaborative work on the use and release of this important tool,” said Dick Pedersen, Director of Oregon’s Department of Environmental Quality and past President of the Environmental Council of States. “Citizens having access to environmental and demographic data is extremely important in helping states implement environmental programs and ensure public health and environmental protection for all. To that end, EJSCREEN facilitates vital citizen engagement.”

EJSCREEN can help governments, academic institutions, local communities, and other stakeholders to highlight communities with greater risk of exposure to pollution based on 8 pollution and environmental indicators, including traffic proximity, particulate matter, and proximity to superfund sites. These indicators are combined with demographic data from the U.S. Census Bureau American Community 5-year Summary Survey enabling users to identify areas with minority or low-income populations who also face potential pollution issues.

EJSCREEN’s capabilities could provide support for educational programs, grant writing, and community awareness efforts so that users can participate meaningfully in decision-making processes that impact their health and environment. While EJSCREEN is being shared publicly to improve work on environmental justice, EPA is not mandating state governments or other entities use the tool or its underlying data. 

EJSCREEN does not direct EPA decisions; it does not provide a basis for identifying areas as EJ communities, and it is not an appropriate standalone tool for making a risk assessment. As a screening tool, its data may have levels of uncertainty, and is therefore incomplete in capturing the total number of pollution problems people face.

Today’s release of EJSCREEN initiates a stakeholder engagement period over the next six months. EPA will collect feedback on the datasets and design of the tool – as well as how it could be further enhanced – and will release a revised version in 2016.

Environmental justice is defined as the fair treatment and meaningful involvement of all people, regardless of race or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.  EPA’s goal is to provide all people with equal access to the environmental decision-making process to maintain a healthy environment in which to live, learn, and work.

To access the tool, visit:



June 10, 2015 | Permalink | Comments (0)

Sunday, June 7, 2015

McKinsey on how to make a city great


McKinsey, the business consulting firm, is taking on urbanism.  From the new report's website:

The result is How to make a city great (PDF–2.1MB), a new report arguing that leaders who make important strides in improving their cities do three things really well:

  • They achieve smart growth. Smart growth identifies and nurtures the very best opportunities for growth, plans ways to cope with its demands, integrates environmental thinking, and ensures that all citizens enjoy a city’s prosperity. Good city leaders also think about regional growth because as a metropolis expands, they will need the cooperation of surrounding municipalities and regional service providers. Integrating the environment into economic decision making is vital to smart growth: cities must invest in infrastructure that reduces emissions, waste production, and water use, as well as in building high-density communities.
  • They do more with less. Great cities secure all revenues due, explore investment partnerships, embrace technology, make organizational changes that eliminate overlapping roles, and manage expenses. Successful city leaders have also learned that, if designed and executed well, private–public partnerships can be an essential element of smart growth, delivering lower-cost, higher-quality infrastructure and services.
  • They win support for change. Change is not easy, and its momentum can even attract opposition. Successful city leaders build a high-performing team of civil servants, create a working environment where all employees are accountable for their actions, and take every opportunity to forge a stakeholder consensus with the local population and business community. They take steps to recruit and retain top talent, emphasize collaboration, and train civil servants in the use of technology.

Mayors are only too aware that their tenure will be limited. But if longer-term plans are articulated—and gain popular support because of short-term successes—leaders can start a virtuous cycle that sustains and encourages a great urban environment.

Download the full report, How to make a city great (PDF–2.1MB).


June 7, 2015 | Permalink | Comments (0)

Developing the Denver way

There's a nice article on the history of Denver's regional approach to development in the Atlanta Journal-Constitution today.  Here is the link.


June 7, 2015 | Permalink | Comments (0)

Saturday, June 6, 2015

Visualizing zombie foreclosures

A fun, and potentially very useful, infographic on the current state of "zombie" foreclosures--and what to do about them--from blog reader Jared Speck.  


Zombie Foreclosure Infographic

June 6, 2015 | Permalink | Comments (0)

Friday, June 5, 2015

National League of Cities releases major survey on short-term rental and ridesharing sectors of sharing economy

The National League of Cities just released a major survey of cities across the country detailing their approaches to short-term rentals, such as Airbnb, and ride-sharing services, such as Uber and Lyft.  The report also looks at statewide actions on these fronts as well.  

This is the most comprehensive data yet on state and local governments' response to the sharing economy.  I highly recommend the report, which is available here.  Of particular use is the appendix, which provides the status of short-term rental and ride-sharing regulation in thirty major American cities.

My biggest take-away from the report is that states and cities are really "all over the map" in terms of their regulatory approaches.  No one approach seems to have emerged as a dominant trend and, interestingly, there does not seem to be any particular political bent to those favoring--or disfavoring--the sharing economy.  Perhaps this will change with time.  

I would try to summarize the findings, but they are relatively complex; a few minutes with the report will be well worth your time.

June 5, 2015 | Permalink | Comments (0)

Somin's new take on Kelo

Ilya Somin (George Mason) has just published The Grasping Hand:  Kelo v. City of New London and the Limits of Eminent Domain.  Here is the book description:

In 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for  "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution - even if the government cannot prove that the expected development will ever actually happen. The Court's decision in Kelo v. City of New London empowered the grasping hand of the state at the expense of the invisible hand of the market.
In this detailed study of one of the most controversial Supreme Court cases in modern times, Ilya Somin argues that Kelo was a grave error. Economic development and "blight" condemnations are unconstitutional under both originalist and most "living constitution" theories of legal interpretation. They also victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Kelo itself exemplifies these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. 
The Supreme Court's unpopular ruling triggered an unprecedented political reaction, with forty-five states passing new laws intended to limit the use of eminent domain. But many of the new laws impose few or no genuine constraints on takings. The Kelo backlash led to significant progress, but not nearly as much as it may have seemed. 
Despite its outcome, the closely divided 5-4 ruling shattered what many believed to be a consensus that virtually any condemnation qualifies as a public use under the Fifth Amendment. It also showed that there is widespread public opposition to eminent domain abuse. With controversy over takings sure to continue, The Grasping Hand offers the first book-length analysis of Kelo by a legal scholar, alongside a broader history of the dispute over public use and eminent domain, and an evaluation of options for reform.



June 5, 2015 | Permalink | Comments (0)

Thursday, June 4, 2015

Sabin Center @ Columbia Law seeks applications for Visiting Scholars

The Sabin Center for Climate Change Law at Columbia Law School invites applications from legal scholars, practitioners and government officials in environmental, energy and natural resources law to join us as a Visiting Scholar for a sabbatical semester, summer or other short-term visit. Visiting Scholars sponsored by the Sabin Center will conduct scholarly and applied research and write papers and blog posts in collaboration with the Center’s faculty and staff, and will otherwise participate in our events and activities. The Visiting Scholar will be given a desk, phone and desktop computer with internet access, along with a modest travel stipend. Further details are available here.

Applications will be accepted on a rolling basis – please send your cv and a one-page proposal to

This program is generously supported by the David Sive Memorial Fund.


June 4, 2015 | Permalink | Comments (0)

EPA draft assessment of effects of fracking on drinking water finds no "widespread, systemic impacts" but some "vulnerabilities"

From the EPA press release:

EPA Releases Draft Assessment on the Potential Impacts to Drinking Water Resources from Hydraulic Fracturing Activities

Assessment shows hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources and identifies important vulnerabilities to drinking water resources.

WASHINGTON—The Environmental Protection Agency (EPA) is releasing a draft assessment today on the potential impacts of hydraulic fracturing activities on drinking water resources in the United States. The assessment, done at the request of Congress, shows that while hydraulic fracturing activities  in the U.S. are carried out in a way that have not led to widespread, systemic impacts on drinking water resources, there are potential vulnerabilities in the water lifecycle that could impact drinking water. The assessment follows the water used for hydraulic fracturing from water acquisition, chemical mixing at the well pad site, well injection of fracking fluids, the collection of hydraulic fracturing wastewater (including flowback and produced water), and wastewater treatment and disposal [].

“EPA’s draft assessment will give state regulators, tribes and local communities and industry around the country a critical resource to identify how best to protect public health and their drinking water resources,” said Dr. Thomas A. Burke, EPA’s Science Advisor and Deputy Assistant Administrator of EPA’s Office of Research and Development. “It is the most complete compilation of scientific data to date, including over 950 sources of information, published papers, numerous technical reports, information from stakeholders and peer-reviewed EPA scientific reports.”

EPA’s review of data sources available to the agency found specific instances where well integrity and waste water management related to hydraulic fracturing activities impacted drinking water resources, but they were small compared to the large number of hydraulically fractured wells across the country. The report provides valuable information about potential vulnerabilities, some of which are not unique to hydraulic fracturing, to drinking water resources, but was not designed to be a list of documented impacts. 

These vulnerabilities to drinking water resources include:

water withdrawals in areas with low water availability;

hydraulic fracturing conducted directly into formations containing drinking water resources;

inadequately cased or cemented wells resulting in below ground migration of gases and liquids;

inadequately treated wastewater discharged into drinking water resources;

and spills of hydraulic fluids and hydraulic fracturing wastewater, including flowback and produced water.

Also released today were nine peer-reviewed EPA scientific reports (  These reports were a part of EPA’s overall hydraulic fracturing drinking water study and contributed to the findings outlined in the draft assessment.   Over 20 peer-reviewed articles or reports were published as part of this study []. 

States play a primary role in regulating most natural gas and oil development. EPA’s authority is limited by statutory or regulatory exemptions under the Clean Water Act, Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act. Where EPA’s exemptions exist, states may have authority to regulate unconventional oil and gas extraction activities under their own state laws.

EPA’s draft assessment benefited from extensive stakeholder engagement conducted across the country with states, tribes, industry, non-governmental organizations, the scientific community and the public to ensure that the draft assessment reflects current practices in hydraulic fracturing and utilizes all data and information available to the agency.

The study will be finalized after review by the Science Advisory Board and public review and comment. The Federal Register Notice with information on the SAB review and how to comment on the draft assessment will be published on Friday June 5, 2015.

For a copy of the study, visit  

To submit comments on the report, see

June 4, 2015 | Permalink | Comments (0)

Wednesday, June 3, 2015

"Largest bribe ever accepted by a public official" to fix land use decisions in a California city gets sentencing

From the US DOJ press release [link corrected] of June 1:

In a case stemming from what is believed to be the largest bribe ever accepted by a public official in an undercover operation, a former member of the Moreno Valley City Council was sentenced this afternoon to 60 months in federal prison for taking a $2.36 million cash bribe from an undercover operative posing as a real estate broker.

Marcelo Co, 64, was sentenced this afternoon by United States District Judge Jesus G. Bernal. Co pleaded guilty last year to one bribery count and one count of filing a false corporate tax return.

The case against Co was the result of an investigation by the Inland Regional Corruption Task Force, which is comprised of prosecutors, agents and investigators from the Federal Bureau of Investigation, IRS – Criminal Investigation, the Riverside County District Attorney’s Office and the United States Attorney’s Office.

Co was elected to the Moreno Valley City Council in November 2010 and resigned from his seat in August 2013 after being charged in state court in an unrelated case. Court documents filed in the federal case outline a bribery scheme in which Co told a businessman and an undercover FBI operative posing as a real estate broker that he would control a voting majority of the Moreno Valley City Council and would be able to guarantee land use decisions that would benefit the businessman and the land broker. Co also promised to always vote in favor of land use decisions that would benefit the real estate broker.

Co solicited campaign donations from the FBI undercover operative and the
businessman, who was cooperating with the investigation. Co eventually received payments of $5,000 and $10,000 that he said were to be used to finance the campaigns of individuals who would vote with him on land use issues.

In the fall of 2012, Co met with the undercover operative to discuss a multimillion dollar sale of a 30-acre parcel that he owned. Co told the real estate broker that once he had control of the City Council, he could change the zoning of the property and the land value would dramatically increase. With the City Council election in November 2012, Co told the undercover investigator that he had the votes to alter the zoning and increase the value of Co’s 30-acre parcel, which had been appraised at $710,000. Co proposed that the undercover operative purchase the property for $5.36 million, which would include a cash payment of $2.36 million.

At a meeting on January 30, 2013, Co agreed to sell the property for $5.36 million, but that the publicly filed documents would reflect a sale price of only $3 million. At this meeting, Co accepted $2.36 million in cash.

The tax charge concerns a federal Corporation Income Tax Return (Form 1120) that Co filed for his company, Qwik Pack Systems, for tax year 2010. In that filing with the IRS, Co failed to report well over $100,000 in income. This tax charge is not related to the bribery scheme.

Co must surrender himself to authorities on October 30 to begin serving his sentence.

June 3, 2015 | Permalink | Comments (2)